Working Paper No. 12-57:
A Response to Professor I. Glenn Cohen's "Regulating Reproduction: The Problem with Best Interests"

Author(s):

Abstract:

This
response to Professor I. Glenn Cohen’s article, Regulating Reproduction: The
Problem with Best Interests, argues that rules restricting whether, when, or
with whom a person reproduces serve an important societal purpose and need not
be abandoned simply because they cannot technically be supported by a “best
interests of the resulting child” (“BIRC”) rationale due to the “non-identity”
problem. The non-identity problem refers to the fact that such rules could
result in a particular child not being conceived at all, or in the creation of
a different child at another time. While Professor Cohen correctly notes that
such rules might be misunderstood to suggest that some human lives are “not
worth living,” this response proposes that it is possible – and necessary -- to
avoid that unacceptable message, without at the same time accepting the extreme
conclusion that adults need never constrain their behaviors respecting
conception. This result can be achieved by re-conceiving the BIRC rationale as
an effort to remind parents—prior to the moment when parenting begins
(conception)—of what the law both needs and assumes them to be: fit parents who
act in their children’s best interests. The state should retain the ability to
exhort adults that a child’s future flourishing is influenced by the parents’
situation at the moment of conception – e.g. the parents’ age, marital status,
and any kin relationship, among other factors -- and reproductive regulation
often serves this important objective.